Thomas v. Borg-Warner Morse Tec LLC (E.D. Ark., Dec. 11, 2018)

Our plain-English summary of Thomas v. Borg-Warner Morse Tec LLC (U.S. District Court, Eastern District of Arkansas, December 11, 2018).

Ronald Thomas worked about twelve years as a brake mechanic and manager at auto repair shops. In March 2017 he was diagnosed with mesothelioma, and he died of it later that year. His estate sued several defendants for negligence and strict liability, alleging that asbestos in brake pads caused his disease. When he did brake jobs, he used an arc grinder to shape new brake pads, which released clouds of dust. Some of the grinders were made by Ammco Tools, whose successor is Hennessy Industries. Hennessy asked for summary judgment, arguing that its grinder contained no asbestos. The federal district court in Arkansas granted the motion and dismissed Hennessy. It found no evidence that a Hennessy product caused the injury. Under Arkansas's products liability statute, the court reasoned, the brake pads were the unsafe items, not the grinder. Using the two together did not make the grinder unsafe, so the grinder could not have caused the mesothelioma.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Eastern District of Arkansas
• Decided: December 11, 2018
• Citation: 340 F. Supp. 3d 800
• Docket: CASE No. 4:17-CV-00522 BSM
• Stage: Summary judgment
• State: Arkansas

Outcome. The court granted Hennessy Industries' motion for summary judgment and dismissed it from the case, because its brake grinder contained no asbestos and could not have caused Thomas's mesothelioma.

What the court held. A maker of a brake grinder that contains no asbestos is not liable in strict liability or negligence for mesothelioma from asbestos in brake pads ground on its machine, because the grinder itself was not unsafe under Arkansas's definition of 'defective condition'.

Issues decided: The Bare-Metal Defense, Design Defect, Product Identification.

The people and their exposure

• Ronald Thomas: mesothelioma; died

The defendants

• Hennessy Industries, LLC (manufacturer)
• Ammco Tools, Inc. (manufacturer)
• Borg-Warner Morse TEC LLC (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Thomas v. Borg-Warner Morse Tec LLC (December 21, 2018). The court granted summary judgment to Ford, Honeywell and Abex on the breach of warranty claims and granted Abex's motion in part on market share liability, but denied summary judgment on all other claims, including punitive damages, so plaintiff Thomas's claims go forward.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Chavers v. General Motors Corp. (Arkansas Supreme Court, 2002). The Arkansas Supreme Court affirmed the trial court's summary judgment for General Motors, AlliedSignal and Ford, rejecting the claims of Deidra Chavers over her husband's mesothelioma death.
• Shields v. Hennessy Industries, Inc. (California Court of Appeal, 1st Appellate District, 1st Division, 2012). The Court of Appeal reversed the judgments on the pleadings for Hennessy Industries and remanded, holding the plaintiffs' brake-grinding-machine negligence and strict liability claims were sufficient to proceed.

Later decisions citing this one

One later decision in our library cites this one:

• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (Delaware Superior Court, 2023). The court denied Hennessy Industries' motion for reargument, so its earlier oral denial of summary judgment on the duty-to-warn claim stood and the plaintiff, Lisa Estrada, prevailed on this motion.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

340 F.Supp.3d 800 (2018)

Michael Lyn THOMAS, Plaintiff

v.

BORG-WARNER MORSE TEC LLC, etal., Defendants.

CASE No. 4:17-CV-00522 BSM.

Signed December 11, 2018.

United States District Court, E.D. Arkansas, Western Division.

George R. Wise, Jr., Brad Hendricks Law Firm, Little Rock, AR, Aaron D. Chapman, Pro Hac Vice, Benjamin D. Braly, Pro Hac Vice, Charles W. Branham, III, Pro Hac Vice, Dean, Omar & Branham, LLP, Dallas, TX, for Plaintiff. David C. Schulte, Pro Hac Vice, Kevin J. Parks, Pro Hac Vice, Joseph S. Pevsner, Pro Hac Vice, Thompson & Knight LLP, John R. Henderson, Pro Hac Vice, McGuireWoods LLP, Gary D. Elliston, Pro Hac Vice, DeHay & Elliston, L.L.P., Dallas, TX, Scott Andrew Irby, Kristen S. Moyers, Wright, Lindsey & Jennings, Gail Ponder Gaines, Barber Law Firm PLLC, Michael Paul Vanderford, Brandon Tyler Cole, Anderson, Murphy & Hopkins, L.L.P., Little Rock, AR, Shepherd D. Wainger, Pro Hac Vice, Kaleo Legal, Virginia Beach, VA, Terrence M.R. Zic, Pro Hac Vice, Whiteford Taylor Preston, LLP, Bethesda, MD, J. Dennis Chambers, Atchley, Russell, Waldrop & Hlavinka, LLP, Texarkana, TX, Stephen Christopher Collier, Pro Hac Vice, Hawkins & Parnell, Atlanta, GA, Bruce T. Bishop, Pro Hac Vice, Kevin P. Greene, Pro Hac Vice, Wilcox & Savage, Norfolk, VA, Jack Roy Reiter, Pro Hac Vice, GrayRobinson, P.A., Miami, FL, Julie Nord Friedman, Pro Hac Vice, Rawle & Henderson, LLP, Pittsburgh, PA, Scott F. Griffith, Pro Hac Vice, Rawle & Henderson LLP, Philadelphia, PA, Barbara Ormsby, Pro Hac Vice, Deutsche, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendant.

ORDER

Brian S. Miller, UNITED STATES DISTRICT JUDGE.

Defendant Hennessy Industries, LLC's ("Hennessy") motion for summary judgment [Doc. No. 232] is granted, and Hennessy is dismissed.

[*801] Ronald Thomas worked as a brake mechanic and manager at auto repair shops for approximately twelve years. Thomas Dep. 8:9-25, 17:13-21, Doc. No. 243-1. In March 2017, he was diagnosed with mesothelioma and died from that disease later that year. Second Amended Compl. ¶ 7, Doc. No. 173; Thomas Dep. 6:12-17. His estate brings products liability claims against multiple defendants for negligence and strict liability, alleging that exposure to asbestos in brake pads caused Thomas's mesothelioma. Id. ¶¶ 26-67.

When performing a brake job, Thomas used an arc grinder to shape new brake pads, which released clouds of brake dust. Id. ¶ 6; Thomas Dep. 19:3-6. Throughout Thomas's career, some brake pads were made with asbestos, and the dust released from these brakes contained asbestos fibers. See Mountz Affidavit ¶¶ 15-20, Doc. No. 214-5. For some brake jobs, Thomas used a grinder made by Ammco Tools, Inc. ("Ammco"). Thomas Dep. 18:18-22. The Ammco grinder did not contain asbestos. Hennessy's Statement of Fact ¶ 17, Doc. No. 214-1. Hennessy is Ammco's successor in interest. Hennessy Br. at 1, Doc. No. 214.

Hennessy moves for summary judgment on the grounds that its brake grinder did not contain asbestos and is therefore not subject to strict products liability or negligence claims for releasing asbestos fibers into the air. Summary judgment is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To succeed on his claims against Hennessy, Thomas must show an Ammco product caused his injury. See Chavers v. Gen. Motors Corp., 349 Ark. 550, 79 S.W.3d 361, 369 (2002).

Thomas has produced no evidence that a Hennessy product caused his injuries. See Bell v. Arvin Meritor, Inc., E.D. PA Civil Action No. 2:12-60143-ER, 2013 WL 9796526, at [*1] n.1 (E.D.Pa. Oct. 24, 2013) (applying California law); see also Bell v.

Arvin Meritor, Inc., E.D. PA Civil Action No. 2:12-60143-ER, 2013 WL 5548832 at [*1] n.1 (E.D. Pa. Oct. 4, 2013) ("[A]s a matter of law, Defendant Bear cannot be liable (in negligence or strict liability) for harm arising from asbestos in brakes that it did not manufacture — even if it was foreseeable that its grinding machines would be used with asbestos-containing brakes in a manner that could lead to an asbestos-related injury."). But see Sherman v. Hennessy Indus., Inc., 237 Cal.App.4th 1133, 188 Cal. Rptr.3d 769, 781 (2015); Shields v. Hennessy Indus., Inc., 205 Cal.App.4th 782, 140 Cal.Rptr.3d 268, 280 (2012).

Arkansas's products liability statute defines "defective condition" as "a condition of a product that renders it unsafe for reasonably foreseeable use and consumption." Ark. Code Ann. § 16-116-202(2). While it was foreseeable that the grinder would be used to grind asbestos-containing brakes, releasing asbestos fibers into the air, such use did not render the grinder itself unsafe. Taking the facts in the light most favorable to Thomas, the brake pads, not the grinder, were unsafe. Their combination with the grinder did not make the grinder unsafe. The dangers of a brake grinder are, presumably, the loss of fingers, mechanical malfunctions, and similar harms. Hennessy's product did not cause Thomas's mesothelioma any more than matches cause the damage done by dynamite. Bell v. Arvin Meritor, Inc., 2013 WL 9796526, at [*1] n.1. Because the brake grinder could not have caused Thomas's [*802] mesothelioma, Hennessy is entitled to summary judgment. 802

For these reasons, defendant Hennessy's motion for summary judgment [Doc. No. 232] is granted, and Hennessy is dismissed.

IT IS SO ORDERED this 11th day of December 2018.

Sources

• The opinion on Google Scholar
• Arkansas asbestos laws
• Arkansas asbestos exposure sites